On "corporations," speech, and nonretaliation

 John Rawls, A Theory of Justice.  I still like this book.  It is still the most compelling and coherent argument about how to assess the moral defensibility of a system.  Rawls, recall, presented us with the idea of the veil of ignorance, wherein we place ourselves behind the veil and evaluate a system by imagining that we do not know what place we might occupy within a system.  Would we find the system "just," not knowing which role we might play?  Freedom for me, but not for thee arguments cannot be sustained by Rawls, but of course, the world is complex beyond that.

Consider the "corporation," a word I place within scare-quotes because lefties have no idea what a corporation is.  Corpus.  Body.  Incorporate.

Most businesses fail.  This is not merely because most people do not know what they are doing, although that is true.  The business world is unforgiving.  There is variation by sector, but most businesses fail.  Suppose you start a business.  You invest your own money, but you also take on debt in order to operate your business.  If you operate your business as yourself, then any debt you incur falls to you, and when your business fails, as it likely will, that debt must be paid by you, personally, from whatever money you have, or will eventually have, hopefully, maybe.  You see the problem, right?  You start a business, and it will probably wind up costing you more than you make.

The solution?  Incorporation.  You "incorporate" your business.  A corporation is a limited liability partnership with whomever is involved in your business.  Whether that means formal investors, co-managers, or whatever.  Maybe it really is just you.  Regardless, you "incorporate," and your business is the body.  The thing.  That means any debts incurred are debts held by the business, not you.  That way, when the business fails, as it likely will, nobody can come after you personally for the money.  If it just goes kaput, your money is safe.  The business may go bankrupt, but you didn't, and you don't spend your life paying off debts.

Small businesses can operate without incorporating, but there is a threshold at which not incorporating is what we call, in technical terms, "fucking stupid."  Given the rates at which businesses fail, we couldn't have an economy without liability limitations.  That means "corporations."

Yes, corporations are necessary.  Not a necessary evil, just necessary period.

I suppose the "." would have been sufficient in text.

Now we get into stupid legalisms, and the stupid politics of stupid legalisms.

Remembering that law is a stupid discipline.

Q:  Are corporations people?

A:  Shut up, go away.

AA (Actual answer):  Yes.

Let's elaborate.  A corporation is a group of people with a size of N, with N being a counting number.  One is a counting number.  "Corporations," plural, necessarily means multiple corporations, and since each corporation consists of at least one person, multiple corporations would include at least two people, so the set of multiple corporations is a set of at least two people.  Corporations are people in the same way that soylent green is made out of people.  Corporations are made out of people.

Bodies!

But that's not what you mean.  You mean to ask a bullshit question about whether or not a "corporation" is a thing with rights.

This is a misunderstood element of first amendment law, bringing us back to one of the most misunderstood cases in modern history: Citizens United v. FEC.

Let's take a moment to address what this case was, and what it was not.  This case was not about campaign spending, nor campaign contributions.

It was about a nonprofit group which tried to make and distribute a movie.  A movie which was banned by a 2002 law.

Yup.

Citizens United v. FEC was a ruling in which the Supreme Court said, no, you can't ban a movie.  We don't do that.  (Actually, we sometimes do, but not this time.)

So here's what happened.  In 2002, a phony, disingenuous, idiot named John McCain finally managed to pass a very stupid law which he had been trying to pass for years to make credulous journalists forget about his involvement in the Keating 5.  The Bipartisan Campaign Reform Act.  This very stupid law did a lot of very stupid things.  For our purposes today, the most important part was that it prohibited any group which did not follow FECA rules from engaging in any communication which either showed a candidate's face, or mentioned a candidate's name within 30 days of a primary, or 60 days of a general election.  Why?  Any such communication was classified as "electioneering," and the law required that all electioneering communication be funded with money following FECA rules.

But what if you just wanted to make a documentary about Hillary Clinton?  And distribute it around the time of the 2008 primaries?  And since you weren't a PAC, you weren't under FECA jurisdiction?  Citizens United was a 501c(4), not a PAC.  Nonprofit.  They made a movie.  That's it.  They made a movie.  But, since the 2008 primaries were in full swing, the law passed by Charles Keating's manwhore made it illegal for the movie to be distributed.

Because it talked about Hillary Clinton!

You can't talk about Hillary Clinton!  What, you think you're allowed to talk about politics in this country?!  Ban that movie!

Yes, this is actually what the case addressed.

The Supreme Court made this very strange ruling that Congress cannot ban movies about politics.  Moreover, they said that you cannot single out a kind of group that you don't like, and say, well, yeah, there's this thing called the first amendment, but we don't like corporations!  Corporations are icky and evil!  So yeah, the first amendment exists, but corporations are evil!

Here's the problem.  If one person has a right, then can multiple people pool their resources to exercise the same right?  Yes.  OK, then a group retains that right.  If that's true, then on what constitutional basis can you single out a style of group to take away their rights?

None.  You cannot say, "corporations are evil, so while other kinds of groups retain the rights of individuals, corporations don't 'cuz corporations are evil!"  You are welcome to your belief that corporations are evil!  It betrays a complete lack of understanding of economics, but you are welcome to such beliefs.  What you cannot do is single out one kind of group for negative treatment under the law, just because you don't like them.

This brings us to one of the most common misinterpretations of Citizens United, which is the premise that corporations get special first amendment rights because a corporation is a person.  No.  That is, in technical terms, ass-backwards.  You cannot deny a corporation rights that another group would retain because a corporation is a style of group you do not like.

Here is how you know I'm right.  You know what a SuperPAC is?  This is the legal designation created by the FEC after the SpeechNow case.  A SuperPAC is not a corporation.  It is a group with first amendment rights.  Why?  Because a group retains the rights of the individual.  The point is that you cannot deny rights to a group, simply because you don't like the group.

OK, so we're clear on Citizens United?  At least a bit?

OK.  'Cuz when that ruling came out, I taught it all fuckin' wrong.

Um...

Uh...

Yeah.  OK, not all wrong.  I mean, I got the history and interpretation right, but I got some predictions wrong.  [Tugs at collar nervously...]

So here's the thing.  When the Supreme Court told "corporations" that they could engage in direct electioneering, my response was that they would continue to stay the fuck out!  Why?  Because the job of a corporation is to make money.  Politics and business are actually quite different.  There is a common market analogy in politics.  An election is like a market, candidates are like firms, competing for market share/vote shares, and blah, blah, blah.  This is all over the place, and I hate this analogy.  It is so prominent, and it undergirds so much academic literature that my first book was actually an attempt to tear it down, and urge people to remember that an election is just a hiring mechanism.  Hiring & Firing Public Officials: Rethinking the Purpose of Elections.

The goal in an election, under plurality rule, is to get the most votes.  It is comparative.  You are trying to get over the threshold, and that's it.  50%+1, or less if you have minor candidates/spoilers/idiots who think they can win on fuckwit party tickets.

A business is trying to maximize profit.  If I'm running a business, I do not give two shits how much money you make.  Why?  Because maybe I could have done something with those two shits.  I could have used them as fertilizer!  That's throwing away something of value for the sake of something that is irrelevant to me.  I care about profit and nothing else.

There comes a point at which trying to draw in more customers will reduce my profit (intersection of supply and demand curve, blah, blah), but you know what I wouldn't do?  I wouldn't tell a bunch of consumers, in a polarized society, I don't like you, and I don't agree with you, so fuck you.

Me, as just some schlub, shouting into the void?  Sure.  After all, nobody reads this blog, it isn't monetized, which wouldn't work anyway because nobody reads it, and it wouldn't be fun if I had to worry about what anyone thought, but profit-seeking businesses?

Come patronize my business!  All are welcome!

What party do I support, what are my politics, and all that?

Come patronize my business!  All are welcome!

What I taught about Citizens United was that any corporation that sought electoral involvement would do exactly as they had done before the ruling.  Yeah, the ruling said they could spend directly, but they'd channel the money through some independent group, rather than spend it directly.  Which is what they'd done before anyway, because why would you tell half the country to suck shit?

From a spending perspective, I've been mostly right.  You don't see a lot of direct spending by corporations.  And in fact, one of the key observations about electioneering and political spending generally is that what corporations spend on politics is so small that it doesn't even amount to rounding error in their budgets.

But something has happened.  They are... speaking.  They're, like, sayin' stuff.  They are taking public positions.  Mostly, positions that lefties like!

As they are constitutionally permitted to do, unless the same lefties who whined their asses off about Citizens United want to change their minds now!

Johnny Rawls calling...

I did not expect this.  I would not have predicted it.  It says something interesting about social dynamics, and others can comment on it, but my point is about the history of law, speech, "corporations," and how the left has seen this stuff.

And now, Florida is retaliating.

Oh, wait, I thought you lefties didn't think "corporations" had speech rights!  I thought you hated corporations anyway!  And... that tax exempt status that they have?  Don't you hate it when corporations get tax exemptions?

So you get a corporation that starts getting involved in politics, claiming to have "free speech rights," like an actual person, that corporation has special tax exempt status, and y'all are totally cool with this?

And if a corporation had all this, and if its speech were right-wing, what would you think about the state retaliating by taking away tax-exempt, self-governing status?

You lefties would be cheering.  You'd be whining about Citizens United, tax exemptions, "inequality," and all sorts of other shit, and cheering on a Democratic governor setting it all right.

What I'm doing right now?  I am demanding that you put on that veil of ignorance.  That you ask how this process would work, not knowing whether it is applied to left-wing speech or right-wing speech, left-wing governors or right-wing governors, and so forth.

I am also admitting that I've been gettin' some shit wrong, empirically.  For-profit companies are speaking more about politics than I ever expected.  This is weird.  I wanna think more about this.

I'd also like you (well, nonexistent you, not because I'm a solipsist, but because I know that nobody reads this damned blog) to think about speech in some consistent ways.  I try to be consistent.  Free speech, John Rawls, update when I see that I got shit wrong (like I'm doing here).  Yet I cannot help but notice some inconsistencies in this case.

Oh, sure.  Why not?  King Crimson, "Elephant Talk," from Discipline.